Verille v. Kopic

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), dated August 9, 2002, which denied his motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court (Reliman, J.H.O.), dated May 26, 1999, and entered upon his failure to appear or answer the complaint. Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on the issue of whether proper service was effected. Ordinarily a proper affidavit of a process server attesting to personal delivery of a summons to a party is sufficient to support a finding of jurisdiction. Where, as here, however, there is a sworn denial of service by the party allegedly served, the affidavit of service is rebutted and jurisdiction must be established by a preponderance of the evidence at a hearing (see Griffin v Griffin, 215 AD2d 386 [1995]; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135 [1986]). Accordingly, the Supreme Court erred in denying the motion to vacate the defendant’s default without conducting a hearing on the issue of whether proper service was effected (see Griffin v Griffin, supra). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.